SCC Case on Expat Voting a Line-Drawing Exercise: Bernstein

Torys Litigation and Dispute Resolution Practice head Andrew Bernstein has told Canadian Lawyer a March 21 Supreme Court of Canada hearing will be a line-drawing exercise.

In Gillian Frank, et al. v. Attorney General of Canada, university professor Gillian Frank challenges the ban that prevents Canadian citizens who have lived aboard for five years or more from voting.

According to s. 3 of the Charter, “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” Andrew told Canadian Lawyer this case was “a line-drawing exercise … about what is a reasonable limit to s. 3 of the charter.”

“Where do you draw the line between somebody who left the country a month before election day… and the person who left forever on their first birthday and has never been back and has never thought about Canada except that they renew their passport every 10 years?” he said.

“My view is a line needs to be drawn somewhere and Parliament’s drawn the line in a pretty reasonable place.”

Andrew also told the publication the decision to deny adult Canadian expats the right to vote “will rest on whether the Supreme Court thinks the social contract theory is a legitimate objective.”

He continued to say the legislation will be saved by s. 1 if it’s accepted as a legitimate objective, but if it’s rejected “it will be either because it was not specifically articulated by Parliament when the law was passed or because the government did not initially argue about it.”

Learn more about Torys’ litigation and dispute resolution work by heading to its practice page.